118 S.E. 178 | S.C. | 1923
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *91 June 12, 1923. The opinion of the Court was delivered by In 1898, W.R. Tindall and Minnie H. Scheper were married at Beaufort, S.C. Thereafter, they resided in this State for about nine years. In 1907, they removed to North Carolina, where the husband's "employment took him." They lived together as husband and wife in the State of North Carolina until 1910, when Minnie H. Tindall brought suit and procured a divorce a mensa et thoro under the laws of that State; the decree awarding her alimony and the custody of her minor daughter, Edna. She then returned, with her child, Edna, to Beaufort, S.C. where she resided until her death in November, 1913. Shortly after the rendition of the judgment in the North Carolina divorce proceeding, W.R. Tindall removed to the State of Georgia, where he has ever since resided. He married in the State of Georgia another woman, by whom he had at least one child, before the death of Minnie H. Tindall.
Under the will of her father, F.W. Scheper, who died in February, 1913, Minnie H. Tindall became entitled to an undivided share in her father's estate. She died intestate as to this property, but prior to her death on November 14th, following a surgical operation, she wrote and signed a paper, dated November 7, 1913, entitled "My Last Wishes," which she inclosed in an envelope and indorsed, *93 "For Addie, to be opened right after my death." This unwitnessed paper gives directions as to the writer's funeral and as to the disposition of certain articles of wearing apparel, and contains the following:
"All my belongings what Papa left me is now Edna's and at her death I want it divided even among my family sisters and brothers if she is married then it must go to her children."
The question here presented is as to the right of W.R. Tindall to take the husband's distributive share of one-third (Section 3555, Civil Code 1912), in the intestate property of Minnie H. Tindall, deceased, and arises out of an issue joined between the daughter, Edna, and her father, W.R. Tindall, as parties defendant to a suit in equity for the partition of the estate of F.W. Scheper among the devisees under his will and their heirs-at-law thereto entitled, the subject matter and scope of which will more fully appear by reference to the decision of this Court on a former appeal herein, reported in
"Edna M. Tindall, the daughter of Minnie H. Tindall, deceased, is the sole heir-at-law of her father, and is, therefore, entitled to all of the property of every kind left by her."
That conclusion is based on findings and views which are thus stated in the Circuit decree:
"The answer of the defendant, W.R. Tindall, admits all of the material allegations of the complaint except so much thereof as alleges that he had forfeited all right to any interest in his first wife's property, or that by his conduct he was estopped from claiming same, or that the writing above referred to left by Mrs. Minnie H. Tindall conveyed her interest in the property to her daughter, Edna M. Tindall. The plaintiffs introduced in evidence the paper *94 left by Mrs. Minnie H. Tindall above referred to, a certified copy of the decree of divorce obtained in North Carolina, and of the proceedings in the Court, and certified copies of the laws of North Carolina in reference to the obtaining of divorces a mensa et thoro and the effect thereof on the rights of the divorced husband as to his deceased wife's property. Under that law it appears that without reconciliation prior to his wife's death he lost all interest in her property. The defendant introduced no testimony. The issues in this case are narrowed down to the single question: Is the defendant, W.R. Tindall, under the admitted facts in this case, entitled to a share of the property left by his first wife, Minnie H. Tindall, deceased? The writing left by her is not witnessed, and is, therefore, neither a deed nor a will. But W.R. Tindall could not have two wives living at the same time, and the law will presume that the second wife is his lawful wife, and should he have denied that she was his lawful wife, which he has not done, the burden rests upon him to prove it. This he has failed to do, nor has he attempted to do so."
The correctness of the conclusion of the Circuit Judge, as thus premised, is broadly challenged by exceptions which, in substance, advance two propositions: (1) That the marital bond, created by the South Carolina contract of marriage, had never been dissolved, and that at the death of Minnie H. Tindall the defendant, W.R. Tindall, was her lawful husband; and (2) that as such lawful husband he is not estopped to assert his legal marital right to take the husband's distributive share in the intestate property of his deceased wife in this State either (a) by reason of any force and effect that may properly be accorded the North Carolina judgment of divorce from bed and board, or (b) by his conduct subsequent to the rendition of said judgment in remarrying in the State of Georgia, etc. The foregoing contentions will be considered and discussed in the order stated. *95
First, as to the marriage bond: Under the well-settled law of this jurisdiction, there is no room for doubt that W.R. Tindall was the lawful husband of Minnie H. Tindall at the time of her death. That conclusion, in the state of the record here presented, requires no extended discussion. The marriage contracted by these parties in South Carolina could not be dissolved either by the consent of the parties, by the judgment of our Courts, or by the Act of our Legislature. Article 17, § 3, Constitution of 1895. Whether indissoluble by "the judgment of any foreign tribunal," as is broadly asserted by way of dicta in some of our earlier cases (Duke v.Fulmer, 5 Rich. Eq., 121. Boyce v. Owens, 1 Hill, 10), or not, certainly no such foreign decree or judgment of divorce purporting to dissolve a marriage contracted in this State will be accorded recognition except where and to the extent such recognition may be required by the full faith and credit clause of the United States Constitution. See McCreery v. Davis,
But appellants' second proposition as to estoppel cannot be sustained. In that connection, the force and effect that may properly be extended to the North Carolina judgment of divorce a mesna et thoro will first be considered. A duly authenticated copy of the record of the proceedings brought by Minnie H. Tindall against W. R. Tindall in the Superior Court of Forsyth County. North Carolina, seeking a divorce a mensa et thoro, was introduced in evidence, together with certain of the Statutes of that State bearing upon the marital property rights of the husband from whom the wife has obtained a divorce of that character. At the time of the commencement of these proceedings in the Spring of 1910, it is not disputed and the record discloses no room for doubt that the bonafide matrimonial domicile of the parties was and had been for more than two years in the State of North Carolina. The defendant in that suit, W.R. Tindall, personally appeared and defended. The issues of fact were submitted to a jury, which found that the defendant (husband) had offered "such indignities to the person of the plaintiff (wife) as to render her condition intolerable and life burdensome." Thereupon the Court rendered a judgment under date of September 21, 1910, (1) granting the plaintiff a divorce from the bed and board of her husband as *97
prayed for, (2) awarding her the custody of her minor child, Edna, and (3) ordering and adjudging that the defendant pay to plaintiff the sum of $33.33 per month, one-third of his net income, alimony for the support of the plaintiff and the infant daughter, Edna, from October 1, 1910. The Statute law of North Carolina in force at the time of the rendition of said judgment and at the time of the death of Minnie H. Tindall, the wife, provided that if a wife "shall have obtained a divorce a mesna et thoro, and shall not be living with her husband at her death, * * * he shall thereby lose all his right and estate of whatever character in and to her personal property, and all right to administer on her estate." (Section 9, Revisal; Section 12, Consol. Stat.), and that "if a divorce from bed and board be granted on the application of the wife, he [the husband] shall thereby lose all right to curtesy in the real property of the wife, and also all right and estate of whatever character in and to her personal property, as administrator, or otherwise; and also any right and estate in the property of the wife which may have been settled upon him solely in consideration of the marriage by any settlement before or after marriage," etc. (Section 2111, Revisal; Section 2524, Consol. Stat.), Under the statutory law of North Carolina the husband appears not to take a distributive share in fee in the separate intestate real estate of the wife (Chapter 29, Consol. Stat.) as in this State, but is entitled to take as tenant by the curtesy consummate (Section 2102, Revisal; Section 2519, Consol. Stat.), The doctrine of the estate by entirety as recognized and applied in North Carolina (Freeman v. Belfer,
Reading the express statutory provisions referred to into the judgment of the North Carolina Court, we have a clear-cut judicial determination of the forfeiture for cause of the husband's marital rights in his wife's property — a forfeiture subject to be defeated only by the wife's condonation and resumption of cohabitation.Taylor v. Taylor,
Generally, a judgment which is final and conclusive in the State where rendered is conclusive in all other States in a suit between the same parties or their privies involving an issue determined in the former suit. 15 R.C.L., 928. Carpenter v. Strange,
The fundamental law of this State prohibiting the dissolution of the marriage bond, and our long established public policy forbidding the recognition of divorce, may not be invoked to defeat the very object of that law and policy — which is primarily to promote and compel the full discharge by both husband and wife of the obligations and duties of the marriage relation by declining to permit or countenance a legal dissolution of the bond, which imposes those duties and obligations, during the life of either husband or wife. Whether marriage is to be regarded as essentially a contract, as maintained by Mr. Justice Pope in McCreery v. Davis,
That criticism, as we think, may not be justly leveled against the public policy of this State. The doctrine that rights to property dependent upon the marital relation, like all other legal rights, are within the control and are subject to the regulation and adjustment of Courts of Equity, has been accorded recognition from the beginning of our judicial history. Thus the jurisdiction of the Courts of Equity to enforce by a decree for alimony the common-law obligation of the husband to support his wife was early recognized and has been consistently exercised. Jelineau v. Jelineau, 2 Desaus, 50. Prather v. Prather, 4 Desaus, 33. Devall v.Devall, 4 Desaus., 79. Taylor v. Taylor, 4 Desaus., 167.Threewits v. Threewits, 4 Desaus., 569. Rhame v. Rhame, 1 McCord, Eq., 197; 16 Am. Dec., 597. Prince v. Prince, 1 Rich. Eq., 282. Hair v. Hair, 10 Rich. Eq., 172. Smithv. Smith,
The North Carolina Court, having jurisdiction of the person of the husband and of the matrimonial relation certainly in so far as it involved the subordination of the husband's marital rights in the wife's property to the discharge of his obligation to support, cherish, and protect his wife and child, had power to adjudicate and fix the measure of those rights. While its judgment could *103
have no efficacy to operate directly upon property beyond its jurisdiction nor to establish or divest title to land in another State, the doctrine that "a Court of Equity, having authority to act upon the person, may indirectly act upon real estate in another State through the instrumentality of his authority over the person," is well settled. Bates v.Bodie,
"Although if all the parties interested in the land were brought personally before a Court of another State, its decree would be conclusive upon them and thus, in effect, determine the title."
The North Carolina judgment may fairly be construed as having established a personal obligation on the part of the husband to renounce and convey to the wife any expectant marital interest in the wife's separate property wherever situated. Such a personal obligation to renounce could have been lawfully undertaken by contract either in North Carolina (Rev. § 2108; Consol. Stat., § 2516), or in this State (See McClure v. Lancaster,
We, therefore, have no difficulty under the facts of this case in reaching the conclusion that such faith and credit should be extended to North Carolina judgment as will bar the appellant's claim. He has preferred that claim in a Court of Equity, having in charge the distribution of the property involved. He is not a resident and citizen of the State, the benefit of whose rigid nondivorce law he invokes. He is asserting a claim at the expense of his own child, a resident of the State, who at the commencement of this action was a minor and an orphan, entitled to the Court's special care and to the State's paternal protection. This daughter, the offspring of a South Carolina marriage, stands in such privity with the deceased wife and mother, whose conduct in the discharge of the marriage obligations appears to have been blameless, as entitles her to assert as against the husband and father all the equities that the deceased wife and mother might have asserted in resisting a property right of the husband based solely upon the marital tie. Granting that "a ground of equitable relief against a judgment is available in the State in which it is rendered as well as in other States" (Roller v. Murray,
On the contrary, he admits in his answer a course of conduct which has been considered by many reputable Courts as sufficient in itself to establish an equitable estoppel against the assertion of a martial right in the deceased wife's property. The admitted facts that shortly after the rendition of the North Carolina judgment Tindall went to and became a resident of the State of Georgia, and there married another woman by whom he had at least one child during the life of Mrs. Tindall, furnish no sufficient basis, as we have seen for indulging the presumption in our Courts that the second marriage was valid. SeeHallums v. Hallums,
"Having violated every marital duty and obligation to the wife whose life he had blighted, he waits until death has ended her sufferings, and then, exhibiting a speculative mood, transfers his right in the property to this plaintiff. * * * Living with a second wife for fourteen years, and raising a child by her, during a period of time when he says that in law he was still the husband of the former wife, is too much of a mockery of law, a travesty upon justice, and insult to the morality and decency of a civilized government, to be tolerated; and, if there were no legal precedents against such a claim, we should not hesitate to establish one. Fortunately there are established rules of equity which come to our aid, and enable us to uphold the sacred obligations of the marital relation, and vindicate the sacredness of the family ties. The record in the case fully discloses the fact that Thomas Foster voluntarily accepted the privileges, benefits, and fruits of the void judgment of divorce, and he is thereby estopped from claiming any portion of the estate of his deceased wife. This estoppel refers, of course, to the property rights of Thomas Foster. Whether he could be punished for bigamy is not a question before us, and the question of all marital rights growing out of his conduct is not involved here, except so *107 far as the property immediately in dispute is concerned. The case is not one where there can be any collusion between the parties, for Hannah C. Foster is dead and the various rights and obligations growing out of the marriage relation between her and Thomas Foster are only considered with reference to his own conduct, so far as he claims a right to a share in her estate. * * * A void judgment of divorce cannot be legalized by the acts of the divorced parties, except so far as either one is estopped by his or her own wrongful conduct in enjoying its benefits, fruits, and privileges. Thus a party who has, as plaintiff, obtained a fraudulent judgment of divorce should not be permitted to enjoy its benefits, nor be allowed to assert its invalidity for his own advantage. So, too, the same rule should be applied to the defendant who, knowing of a void judgment of divorce against him, acquiesces in it for many years, treats it as valid, permanently renounces his marital obligations, remarries, and who has a child by a second marriage, and he should not be permitted to take advantage of his wrong. Good morals, as well as good law, forbid it. * * * As we have before intimated, and to avoid any chance for an impression that we lend any countenance to the idea that parties may become divorced upon the ground of estoppel by conduct, we repeat that this action is one relating solely to property rights, unaffected by any considerations which give to the marriage relation its precise status. The marriage relation between Foster and his deceased wife, with all its duties and obligations, has been terminated by her death; and he is now asserting this former relation, and the invalidity of the decree of divorce, solely for the purpose of obtaining her property. It is to such a state of facts, and in such an action, that we apply the doctrine of estoppel. Beyond this we do not go."
The same principle is announced and applied to essentially similar facts in Ellis v. White,
In the writer's opinion — a view, however, to which the other members of the Court are not hereby committed — the facts considered independently of any force which may properly be attributed to the North Carolina judgment are such as should be held to bar the appellant's claim under the doctrine of equitable estoppel. The reasons for not applying the principle of estoppel in the case of McCreery v.Davis, supra (where the legal right of dower supported by the valuable consideration of marriage had already attached when the invalid divorce was procured; where the wife who had obtained the divorce had not remarried; where both parties to the marriage relation were alive and the resumption of that relation a possibility; and where there was no evidence *109 establishing the wife's culpable responsibility for the separation), are wholly absent in the case at bar. But whether or not the conduct of the husband, considered apart from the North Carolina judgment, be regarded as sufficient in itself to create an estoppel, there can be no doubt that the conduct is such as strongly to reinforce the righteousness of the conclusion that the North Carolina judgment should be held effectually to estop and bar the appellant from asserting as a husband any right of property in the intestate estate of his deceased wife in this State.
The decree of the Circuit Court is, accordingly, affirmed.